Last month, Carlo wrote about how a number of doctors were pushing their patients to sign waivers
, promising that they wouldn't review the doctors online -- and that one company would go around trying to enforce these waivers and get critical comments pulled down from ratings sites like RateMyMD.com. The whole thing seemed quite odd -- but in another article about the service (found via Michael Scott
), the details make it clear that this is even more questionable than we previously thought. That's because the way the "waivers" from the company "Medical Justice" work is by having the patient "assign all intellectual property rights for anything the patient may write (and publish) about the physician to the physician."
Then, the physician can claim copyright infringement
on any review, and force it offline. So unlike what was implied in the original article, it wouldn't be a specific contractual
issue, but a copyright
This is not
what copyright law was intended to do.
Of course, it does bring up a few interesting points of discussion. First, is that the main purpose of using copyright here is so that the doctors can make use of the DMCA's notice-and-takedown safe harbor provisions, rather than be stymied by the similar (but not quite the same) CDA section 230 safe harbors for things like defamation. One of the key differences between the two is that Section 230 doesn't have a notice-and-takedown provision (though some have been trying to add one
). So, really, all this is designed to do is figure out a way to shift the critical rules in question from the CDA to the DMCA. Sneaky!
Second, is that I wonder if this would be seen as actual copyright infringement anyway, or if reviewers could make a credible fair use defense. In some cases, the review itself might not even be covered by copyright (i.e., if there's no creative expression in it -- such as simple "he's awful!" reviews). In other cases where copyright might exist, the four factor fair use test might allow its use. While it could hurt the doctor's
ability to make money as a doctor, it wouldn't be harming the market for the copyrighted content
. Also, the use would be for purposes of "criticism." So, it's difficult to see how such content posted on a review site would actually violate anyone's copyright, even if the rights really were signed over.
But... (and this is where that sneaky first part comes into play), this might not matter. Even though you can
get in trouble for filing a false DMCA notification (and even for failing to take fair use into account
), most online services will quickly pull down content when receiving a DMCA takedown to preserve their safe harbor protections. So in almost all cases, the content will get pulled down, even if the content isn't really infringing. And, then it seems quite unlikely that any reviewer/patient will find it worth the trouble of filing a counternotice.
So, really, this is a fascinating misuse of the DMCA that will live on (unless someone like the EFF decides to make an example of it). What it really
highlights is one of the many problems with the DMCA's notice-and-takedown provision, which heavily incentivizes service providers to pull down content as quickly as possible. As a result of that, companies like Medical Justice have tremendous incentives to come up with a plan like this to shift what they do to a copyright issue, solely to make use of the notice-and-takedown provision, even in cases where there's no actual infringement of the copyright.